Who Won the New Deal Confrontation Between FDR and the Court: The Presidency or the Court?

Rick Pildes

As supporters of President Obama in the aftermath of the health-care arguments continue to urge him to confront the Supreme Court more aggressively (see E.J. Dionne, here, and lawyer Marvin Ammori, here) , and as analogies to FDR's confrontation with the Court continue to mount, I want to continue to provide more of a revisionist historical perspective on the New Deal confrontation. In an earlier post, I noted that this confrontation occurred at a moment at which FDR was perhaps the most popular President in modern history and the Court was striking down a staggering array of federal statutes and presidential actions. Yet FDR nonetheless lost the confrontation, at least in the sense that his Court-packing legislation was defeated.

I now want to turn to the aftermath of the confrontation and ask: which institution actually won the Court-packing fight? The conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, since the Court soon acceded to the New Deal’s constitutionality. On this standard law-school narrative, FDR won the war because his attacks on the Court forced the Court to back down and change constitutional direction. Here is a different perspective that I provide in my article, Is The Supreme Court A "Majoritarian" Institution?:

But FDR’s legislative assault on the Court destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation, despite his huge electoral triumph in 1936.As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.” National health care, the next major item on FDR’s agenda, faded away. The progressive domestic policy agenda did not recover until 1964. Reflecting back, FDR’s second vice president, Henry Wallace, observed: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.”

No rational politician, looking back at FDR’s attempt to bring the Court into line, other than through the ordinary appointments process, is likely to repeat FDR’s efforts.Thus, one can read the 1937 experience as suggesting that, for better or worse, judicial independence and the authority of the Court have become so entrenched in America that even the most popular politicians play with fire if they seek too directly to take on the power of the Court.

Moreover, the immediate reaction to FDR's most direct attack on the Court, the Court-packing plan, was vehement, geographically widespread, and bipartisan:

. . . FDR’s Court-packing plan was in dire shape politically long before the Court’s “switch in time” took the last wind out of that effort – despite the fact, as well, that the plan was the first piece of legislation FDR put forward after having just won the biggest landslide in American history. Two-thirds of the newspapers that had endorsed FDR came out immediately and vociferously against the plan. The most common charge was that FDR was seeking “dictatorial powers,” a particularly resonant charge. Telegrams to Congress, a leading gauge of public opinion at the time, flowed overwhelmingly, and with passionate intensity, against the plan. Some leading Progressive Democrats in the Senate, like Hiram Johnson and George Norris, quickly bolted from FDR and defended the Court’s independence; conservative Democrats wanted no part of the plan; a leading Western Democrat, Senator Burton Wheeler, announced he would lead the fight against the plan; FDR’s Vice President did little to conceal his disdain for Court packing; Republicans sat silently and let the Democratic Party tear itself apart. And the Court, too, has tools to fight back: Chief Justice Hughes sent a letter, with devastating effect, to the Senate Judiciary committee that took apart FDR’s justifications for Court packing.

For those inclined to think the Court backed down because of the political pressure FDR brought to bear, it is important to keep in mind that FDR was able to make seven appointments to the Court between 1937 and 1943. Thus, we cannot know whether the Court acceded to the New Deal due to the pressure of public opinion and presidential attacks or simply the fortuity that FDR made so many appointments in such a short period.

Of course, President Obama is not proposing legislation challenging the Court, let alone any measure as confrontational as the Court-packing plan. And public criticism of the Court's decisions, by the President or anyone else, is legitimate in a democracy. But while it's common wisdom to believe FDR defeated the Court, it might well be that the right perspective is that the Court defeated FDR -- and there is no doubt that the Court's independence and public support was enhanced as a result of this fight. As a political matter, then, when Presidents take on the Court, even in the mild form of criticizing the Court's decisions, Presidents walk a delicate line. For better or worse, even among those who disagree with the Court's decisions, there is a surprisingly deep reservoir of support for the Court as an institution (I will look at some of the data in another post). That doesn't mean Presidents shouldn't take on the Court; it does mean they should do so with adequate historical appreciation for the nature of the battle they are joining.

FDR lost the battle and won the war by filling the Court with his nominees, nominees who shared his overall vision that the "horse and buggy" vision of CC etc. was wrong.

The problem with FDR was not his comments criticizing the rulings (closer to the issue here) but his attempt to go a step further. Obama is not doing this. He is not, e.g., trying to strongly end the filibuster to get more of his nominees on the bench (itself much less than FDR's move).

Presidents have criticized the SC's rulings for years. It is a major theme for Republicans. Reagan personnel continuously pushed the SC to overturn Roe v. Wade, even when the cases involved minor points. What exactly is Obama doing as compared to that?

I think that Rick is basically correct. Those who call for Obama overtly to "attack the Court" in a full-throated way (as against suggesting that he will, if given the opportunity, continue to appoint non-reactionary justices), are suffering, I suspect, from living in an echo chamber created by talking too much to like-minded people. Attacking Paul Ryan is one thing, going after "the Court" is another. I personally regret this, inasmuch as I would love to see a mainstream authority figure go not only after the Court, but also our radically defective Constitution. But I recognize the limits on a vulnerable President seeking re-election and scarcely expect him to lead the charge against the Constitution.

I'm pleased that Prof. Pildes has opened up this post for comments. My comment:

"Alas, Prof. Pildes' current post on this topic does not provide for comments. I'm not suggesting that he open that post to comments. Rather, perhaps Prof. Gerard Magliocca might consider posting on this topic, as he has done some serious research on the subject, including his 'Court-Packing and the Child Labor Amendment' in 27 Constitutional Commentary No. 2, Fall 2011, beginning at page 455."

at his earlier post was premature. But I repeat it here for the reference to Gerard's article with respect to Sandy's comment that he " ... would love to see a mainstream authority figure go not only after the Court, but also our radically defective Constitution." Gerard's article has an interesting discussion on the pre-New Deal relative ease in passing amendments to the Constitution that tightened up during the New Deal with the proposed Child Labor Amendment, triggering FDR's concern with the difficulties under Article V. perhaps FDR's reason for the Article III route proposed in his famous 1937 Fireside Chat. According to Gerard: "In that speech, FDR said that '[n]o amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time' and he observed that thirteen states with just five percent of the population could veto any proposal." [page 481]

I don't know if Obama plans to propose an amendment to address Citizens United or any other amendment during the upcoming campaign. But just why shouldn't Obama be critical of the 5-4 Citizens United decision and of what may possibly be a similar result for the ACA appeals? Obama's critiques/challenges differ from FDR's situation. Joe makes the point of Reagan's issues with the Court for Roe v. Wade. E. J. Dionne, Jr. made the point in his recent column that Obama is not, should not be, a wimp in going after the Court, which is what Republican incumbent/challengers for the presidency have been doing for years in the attacking the Warren and Burger Courts.

Those who advocate Mr. Obama going to rhetorical war with the Supreme Court need to define the objective of that war.

If the objective is to intimidate the Supreme Court into finding Obamacare constitutional, then as Rick's post shows, there is little New Deal precedent that such a war works.

On the other hand, if the objective is to reelect the President, the 1936 election suggests this approach might work if the President and his policies are popular.

In this case, voter approval of Mr. Obama is still sub-50% and voter disapproval of Obamacare is a plurality. Indeed, in the Rasmussen poll, voter approval of the Supreme Court nearly doubled after the Court suggested in oral arguments that it might find Obamacare unconstitutional.

to wage such a "war," as our yodeler describes? Were Republican incumbent/challenger presidents waging "war" against the Court in challenging the Warren and Burger Courts? Or is our yodeler fearful that real citizens will unite despite the deep pockets of corporate "citizens"?

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